Draft Immigration Rules for the EU Settlement Scheme

Annex B

Draft Immigration Rules for the EU Settlement Scheme

Set out below is a draft of the Immigration Rules for the EU Settlement Scheme, in a new Appendix EU to those Rules. This is intended to inform our discussions with our scheme user groups and other stakeholders about the detailed basis on which it is proposed that the scheme will operate. We do not generally expect that applicants will need to consult the Immigration Rules for the scheme, but will be guided by the online application process itself and by supporting user-friendly guidance which will be available on gov.uk.

A final version of the Immigration Rules will be laid before Parliament under section 3(2) of the Immigration Act 1971. That version may differ from the draft set out below and from the approach set out elsewhere in this Statement of Intent, including in light of those discussions with stakeholders and others.

The draft Immigration Rules seek to reflect the basis for the EU Settlement Scheme set out in this Statement of Intent. Consistent with the draft text of the Withdrawal Agreement, the Immigration Rules for the scheme will enable EU citizens and their family members, and the family members of certain British citizens, to apply for leave under the 1971 Act on a basis which reflects their current EU law rights (e.g. under the Free Movement Directive and the case law of the Court of Justice of the European Union (CJEU)) and the more favourable provision which the UK has decided as a matter of domestic policy to make for them under the scheme.

The Immigration Rules are secondary legislation and therefore the draft Rules use some different, more technical terms for the policy approach to the scheme set out in this Statement of Intent. For example, the requirements for being ‘continuously resident’ in the UK set out in paragraph 3.4, above, are reflected in the draft Rules in the terms ‘continuous qualifying period’ (which is defined in Annex 1 to the Rules and which also covers other requirements, such as the circumstances in which that period has to begin by the end of the implementation period on 31 December 2020) and no ‘supervening event’ has occurred (also defined in Annex 1).

The requirements for the scheme and the procedure for granting leave under it are set out in paragraphs EU2 to EU8.

The requirements for making a valid application under the scheme are set out in paragraph EU9.

The eligibility requirements for settled status (indefinite leave to remain) are set out in paragraph EU11 (for EU citizens and their family members) and in paragraph EU12 (for the family members of certain British citizens: ‘Surinder Singh’ cases).

The eligibility requirements for pre-settled status (five years’ limited leave to remain) are set out in paragraph EU14.

The basis on which an application under the scheme will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement, are set out in paragraphs EU15 and EU16.

Appendix EU has been drafted to provide a largely self-contained set of Immigration Rules for the scheme. The terms defined in its Annex 1 will displace any definition of those terms used elsewhere in the Immigration Rules. Work continues on the technical relationship of Appendix EU to other parts of the Immigration Rules and will be reflected as appropriate in the Rules for the scheme to be laid before Parliament.

Appendix EU: EU citizens and family members

Purpose

EU1. This Appendix sets out the basis on which an EU citizen39 and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to remain or limited leave to remain.

Requirements and procedure

EU2. The applicant will be granted indefinite leave to remain, where the decision-maker is satisfied that:

•A valid application has been made in accordance with paragraph EU9;

•The applicant meets the eligibility requirements for indefinite leave to remain in accordance with paragraph EU11 or EU12; and

•The applicant is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.

EU3. The applicant will be granted five years’ limited leave to remain, where the decision- maker is satisfied that:

•A valid application has been made in accordance with paragraph EU9;

•The applicant does not meet the eligibility requirements for indefinite leave to remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to remain in accordance with paragraph EU14; and

•The applicant is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.

EU4. Where a person has been granted limited leave to remain under this Appendix:

•They must continue to meet the eligibility requirements for that leave which they met at the date of application or meet other eligibility requirements for limited leave to remain in accordance with paragraph EU14;40 and

•They remain able to apply for indefinite leave to remain under this Appendix and will be granted this where the decision-maker is satisfied that the requirements in paragraph EU2 are met.

EU5. Where a person has been granted indefinite leave to remain or limited leave to remain under this Appendix and that person also has a right to reside under the EEA Regulations, the leave does not have effect to the person’s detriment in so far as the leave is incompatible with that right to reside for as long as that person has that right.

EU6. A valid application made under this Appendix which does not meet the requirements for indefinite leave to remain or limited leave to remain will be refused.

citizen will retain that leave if during its currency they become a family member who has retained the right of residence; they will not have to make a further application.

EU7. Annex 1 sets out definitions which apply to this Appendix. Any provision made for those terms elsewhere in the Immigration Rules does not apply to an application made under this Appendix.41

EU8. Annex 2 applies to the consideration by the decision-maker of a valid application made under this Appendix.

Valid application

EU9. A valid application has been made under this Appendix where:

(a)It has been made in the UK using the required application process;

(b)Any required fee has been paid in full in accordance with the required application process;

(c)The required proof of identity and nationality has been provided;

(d)The required biometrics have been provided.

EU10. An application will be rejected as invalid where it does not meet the requirements in paragraph EU9.

Eligibility for indefinite leave to remain

Persons eligible for indefinite leave to remain as a relevant EU citizen or their family member

EU11. The applicant meets the eligibility requirements for indefinite leave to remain as a relevant EU citizen or their family member where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met:

Condition

Is met where:

1.

The applicant has a documented right of permanent residence

 

 

and no supervening event has occurred

2.

The applicant is a relevant EU citizen, or a family member of a

 

 

relevant EU citizen, and there is valid evidence of their

 

 

indefinite leave to enter or remain

3.

The applicant is (a) a relevant EU citizen, (b) a family member of a

 

 

relevant EU citizen or (c) a family member who has retained the

 

 

right of residence, and has completed a continuous qualifying

 

 

period of five years in any (or any combination) of those

 

 

categories and since then no supervening event has occurred

4.

(a) The applicant is a relevant EU citizen who is a person who

 

 

has ceased activity; and

 

 

(b) Since they did so, no supervening event has occurred

5.

(a) The applicant is a family member of a relevant EU citizen who

 

 

is a person who has ceased activity; and

 

 

 

 

(b)The relevant EU citizen has been or is being granted indefinite leave to remain under this Appendix (or would be granted that leave, if they made a valid application under this Appendix); and

(c)Sub-paragraph (a) was met at the point at which the relevant EU citizen became a person who has ceased activity; and

(d)Since the relevant EU citizen became a person who has ceased activity, no supervening event has occurred

6.(a) The applicant is a family member of a relevant EU citizen who has died and the relevant EU citizen was resident in the UK as a worker or self-employed person at the time of their death; and

(b)The relevant EU citizen was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and

(c)The applicant was resident in the UK with the relevant EU citizen immediately before their death and since then no supervening event has occurred

7.(a) The applicant is a child under the age of 21 years of a relevant EU citizen, or of their spouse or civil partner, and either:

(i)The marriage was contracted or the civil partnership was formed before the specified date; or

(ii)That person was the durable partner of the relevant EU citizen before the specified date (the definition of durable partner in Annex 1 being met before that date rather than at the date of application) and the partnership remained durable at the specified date; and

(b)The relevant EU citizen (or, as the case may be, their spouse or civil partner) has been or is being granted indefinite leave to remain under this Appendix (or, in the case of an Irish citizen who has not made a valid application under this Appendix, they would be granted that leave if they made such an application)

Persons eligible for indefinite leave to remain as a family member of a qualifying British citizen

EU12. The applicant meets the eligibility requirements for indefinite leave to remain as a family member of a qualifying British citizen where the decision-maker is satisfied, including by the required evidence of family relationship, that, at the date of application, the applicant is resident in the UK and is a family member of a qualifying British citizen and that condition 1 or 2 set out in the following table is met:

Condition Is met where:

1.The applicant has completed a continuous qualifying period of five years, by being in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6), and since then no supervening event has occurred

2.The applicant is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation

6); and the spouse or civil partner has been or is being granted indefinite leave to remain under this Appendix

EU13. The reference to the applicant completing a continuous qualifying period of five years:

•In condition 1 in the table in paragraph EU12 can include a period (or combination of periods) during which the applicant was a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence before becoming the family member of a qualifying British citizen; and

•In condition 3 in the table in paragraph EU11 can include a period during which the applicant was a family member of a qualifying British citizen before becoming (as the case may be) a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence.

Eligibility for limited leave to remain

EU14. The applicant meets the eligibility requirements for limited leave to remain where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Condition Is met where:

1.The applicant is a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence, and is not eligible for indefinite leave to remain under this Appendix solely because they have completed a continuous qualifying period of less than five years

2.One of the following applies:

(a)The applicant is a family member of a qualifying British citizen; is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and is not eligible for indefinite leave to remain under this Appendix solely because they have completed a continuous qualifying period of less than five years

(b)The applicant is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and the spouse or civil partner has been or is being granted limited leave to remain under this Appendix

EU15. An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:

(a)The applicant is the subject of an extant deportation order or of a decision to make a deportation order; or

(b)The applicant is the subject of an extant exclusion order or exclusion decision; or

(c)The applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC.

EU16. An application made under this Appendix may be refused on grounds of suitability where, in relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application) and the information, representation or documentation is relevant to the decision whether or not to grant the applicant leave under this Appendix.

Annex 1 ? Definitions

Term

Definition

adopted child

means a child adopted in accordance with a

 

decision taken by the competent administrative

 

authority or court in the UK or in a country whose

 

adoption orders are recognised by the UK, or in a

 

particular case in which that decision in another

 

country has been recognised in the UK as an

 

adoption

child

one of the following applies at the date of

 

application:

 

(a) the person is the direct descendant of a

 

relevant EU citizen (or of a qualifying British

 

citizen) or of their spouse or civil partner and is

 

under the age of 21 years; or

 

(b) the person is the direct descendant of a

 

relevant EU citizen (or of a qualifying British

 

citizen) or of their spouse or civil partner, is aged

 

21 years or over and is dependent on the relevant

 

EU citizen (or on the qualifying British citizen) or

 

on their spouse or civil partner

‘dependent’ means here that:

(a)having regard to their financial and social conditions, or health, the applicant cannot meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EU citizen (or of the qualifying British citizen) or of their spouse or civil partner; and

(b)such support is being provided to the applicant by the relevant EU citizen (or by the qualifying British citizen) or by their spouse or civil partner; and

(c)where the applicant was aged 21 years or over when they came to the UK to join the relevant EU citizen or their spouse or civil partner, the need for such support existed in the applicant’s state of origin or in the state from which they came to the UK, but there is no need to determine the reasons for that dependence or for the recourse to that support

in addition:

(a)‘child’ includes an adopted child of, or a child born through surrogacy (where recognised in UK law) for, a relevant EU citizen (or a qualifying British citizen) or their spouse or civil partner, but does not include a child cared for by a relevant EU citizen (or by a qualifying British citizen) or their spouse or civil partner solely by virtue of a legal

 

 

 

guardianship order or a formal or informal

 

 

 

fostering arrangement;42 and

 

 

 

(b) ‘direct descendant’ also includes a grandchild

 

 

 

or great-grandchild, other than for the purpose of

 

 

 

meeting condition 7 in the table in paragraph

 

 

 

EU11 of this Appendix or condition 2 in the table in

 

 

 

paragraph EU12; and

 

 

 

(c) ‘spouse or civil partner’ means (as the case

 

 

 

may be) the person described in sub-paragraph

 

 

 

(a)(i) of the entry for ‘family member of a qualifying

 

 

 

British citizen’ or in sub-paragraph (a) of the entry

 

 

 

for ‘family member of a relevant EU citizen’ in this

 

 

 

table

civil partner

 

at the date of application:

 

 

 

(a) the person is in a civil partnership (which exists

 

 

 

under or by virtue of the Civil Partnership Act

 

 

 

2004), or is in a same sex relationship registered

 

 

 

overseas which is entitled to be treated as a civil

 

 

 

partnership under that Act, with a relevant EU

 

 

 

citizen (or with a qualifying British citizen); and

 

 

 

(b) it is not a civil partnership of convenience; and

 

 

 

(c) neither party has another civil partner, a

 

 

 

spouse or a durable partner with (in any of those

 

 

 

circumstances) immigration status in the UK

 

 

 

based on that person’s relationship with that party

continuous qualifying

 

a period of residence in the UK:

period

 

(a) which began before the specified date (or after

 

 

 

that date where the person is a family member of

 

 

 

a relevant EU citizen and was resident outside the

 

 

 

UK at that date); and

 

 

 

(b) during which none of the following occurred:

 

 

 

(i) absence(s) from the UK which exceeded a total

 

 

 

of six months in any 12-month period, except for:

 

 

 

(aa) a single period of absence which did not

 

 

 

exceed 12 months and was for an important

 

 

 

reason (such as pregnancy, childbirth, serious

 

 

 

illness, study, vocational training or an overseas

 

 

 

posting); or

 

 

 

(bb) any period of absence on compulsory military

 

 

 

service; or

 

 

 

(ii) the person served or is serving a sentence of

 

 

 

imprisonment of any length in the UK, unless they

 

 

 

have resided in the UK continuously for at least 10

 

 

 

years (and have the right of permanent residence

 

 

 

in the UK under regulation 15 of the EEA

 

 

 

Regulations) and the decision-maker considers

 

 

 

that:

 

 

 

(aa) before serving a sentence of imprisonment,

 

 

 

the person had forged integrating links with the

 

 

 

UK; and

 

 

 

(bb) the effect of the sentence of imprisonment

 

 

 

 

 

was not such as to break those integrating links;

 

and

 

(cc) taking into account an overall assessment of

 

the person’s situation, it would not be appropriate

 

to treat the period of imprisonment as breaking the

 

continuous qualifying period; or

 

(iii) any of the following, unless it has been set

 

aside or no longer has effect in respect of the

 

person:

 

(aa) any decision or order to exclude or remove

 

under regulation 23 or 32 of the EEA Regulations;

 

or

 

(bb) a decision to which regulation 15(4) of the

 

EEA Regulations otherwise refers, unless that

 

decision arose from a previous decision under

 

regulation 24(1); or

 

(cc) an exclusion decision; or

 

(dd) a deportation order, other than under the EEA

 

Regulations; and

 

(c) (where the period is less than five years) which

 

continues at the date of application

custody of a child

means that the child normally lives with the

 

applicant or does so part of the time, and includes

 

arrangements agreed informally and those which

 

are subject to a court order for determining with

 

whom the child is to live and when

date of application

the date on which the application is submitted

 

under the required application process

decision-maker

the Secretary of State

dependent parent

the direct relative in the ascending line of a

 

relevant EU citizen (or of a qualifying British

 

citizen) or of their spouse or civil partner

 

in addition:

 

(a) ‘direct relative in the ascending line’ includes a

 

grandparent or great-grandparent; and

 

(b) ‘spouse or civil partner’ means (as the case

 

may be) the person described in sub-paragraph

 

(a)(i) of the entry for ‘family member of a qualifying

 

British citizen’ or in sub-paragraph (a) of the entry

 

for ‘family member of a relevant EU citizen’ in this

 

table; and

 

(c) the dependence of the direct relative in the

 

ascending line on the relevant EU citizen (or on

 

the qualifying British citizen), or on their spouse or

 

civil partner, is assumed

dependent relative

at the date of application, the person:

 

(a) is a relative of their sponsor but not their

 

spouse, civil partner, durable partner, child or

 

dependent parent; and

 

(b) holds a relevant document as the dependent

 

relative of their sponsor for the period of residence

 

relied upon

 

‘sponsor’ means here:

 

(a) a relevant EU citizen who has been or is being

 

granted indefinite leave to remain or limited leave

 

to remain under this Appendix (or who would be

 

granted that leave, if they made a valid application

 

under this Appendix); or

 

(b) the spouse or civil partner of such a relevant

 

EU citizen, where the application for that relevant

 

document was made before 1 February 2017

deportation order

means, as the case may be:

 

(a) an order made under regulation 32(3) of the

 

EEA Regulations; or

 

(b) an order made under section 5(1) of the

 

Immigration Act 1971 (in respect of conduct after

 

the specified date by a relevant EU citizen or other

 

person eligible for leave under this Appendix); or

 

(c) an order made in accordance with section

 

32(5) of the UK Borders Act 2007 (in respect of

 

conduct after the specified date by a relevant EU

 

citizen or other person eligible for leave under this

 

Appendix)

documented right of

the decision-maker is satisfied from the

permanent residence

information available to them that:

 

(a) the person has been issued by the Secretary

 

of State with a document certifying permanent

 

residence or a permanent residence card under

 

regulation 19 of the EEA Regulations; and

 

(b) this document or card was issued or renewed

 

within the last 10 years, and is not invalid under

 

regulation 19(4)(c); and

 

(c) this document or card has not been revoked,

 

and its renewal has not been refused, under

 

regulation 24 (except where this occurred because

 

the person had been absent from the UK for a

 

period of more than two, and no more than five,

 

consecutive years); and

 

(d) the person’s right to reside has not been

 

cancelled under regulation 25

durable partner

at the date of application:

 

(a) the person is in a durable relationship with a

 

relevant EU citizen, with the couple having lived

 

together in a relationship akin to a marriage or civil

 

partnership for at least two years (unless there is

 

other significant evidence of the durable

 

relationship); and

 

(b) the person holds a relevant document as the

 

durable partner of the relevant EU citizen for the

 

period of residence relied upon, unless the date of

 

application is after the specified date and the

 

person was resident outside the UK at that date;

 

and

 

(c) it is not a durable partnership of convenience;

 

and

 

(d) neither party has another durable partner, a

 

spouse or a civil partner with (in any of those

 

circumstances) immigration status in the UK

 

based on that person’s relationship with that party

 

in addition, to meet condition 6 in the table in

 

paragraph EU11 of this Appendix, the above

 

requirements are to be met with reference to the

 

period immediately before the death of the

 

relevant EU citizen rather than to the date of

 

application

educational course

a general educational course, apprenticeship or

 

vocational training course, as provided by

 

regulation 10(7) of the EEA Regulations

EEA Regulations

the Immigration (European Economic Area)

 

Regulations 2016 (as they have effect at the date

 

of application)

EU citizen

a person who is a national of: Austria, Belgium,

 

Bulgaria, Croatia, Republic of Cyprus, Czech

 

Republic, Denmark, Estonia, Finland, France,

 

Germany, Greece, Hungary, Ireland, Italy, Latvia,

 

Lithuania, Luxembourg, Malta, Netherlands,

 

Poland, Portugal, Romania, Slovakia, Slovenia,

 

Spain or Sweden

evidence of birth

means:

 

(a) (in the case of a child) the full birth

 

certificate(s) or other document(s) which the

 

decision-maker is satisfied evidences that the

 

applicant is the direct descendant of the relevant

 

EU citizen (or of the qualifying British citizen) or of

 

their spouse or civil partner, as described (as the

 

case may be) in sub-paragraph (a)(i) of the entry

 

for ‘family member of a qualifying British citizen’ or

 

in sub-paragraph (a) of the entry for ‘family

 

member of a relevant EU citizen’ in this table; or

 

(b) (in the case of a dependent parent) the full

 

birth certificate(s) or other document(s) which the

 

decision-maker is satisfied evidences that the

 

applicant is the direct relative in the ascending line

 

of the relevant EU citizen (or of the qualifying

 

British citizen) or of their spouse or civil partner, as

 

described in sub-paragraph (a) above

exclusion decision

means a direction given by the Secretary of State

 

that a person must be refused entry to the UK on

 

the ground that that person’s presence here would

 

not be conducive to the public good (in respect of

 

conduct after the specified date by a relevant EU

 

citizen or other person eligible for leave under this

 

Appendix)

exclusion order

means an order made under regulation 23(5) of

 

the EEA Regulations

family member of a

a person who has satisfied the decision-maker,

qualifying British citizen

including by the required evidence of family

 

relationship, that:

 

(a) they are (and for the relevant period have

 

been) or (as the case may be) they were (for the

 

relevant period or at the relevant time):

 

(i) the spouse or civil partner of a qualifying British

 

citizen, and the marriage was contracted or the

 

civil partnership was formed before the specified

 

date; or

 

(ii) the child or dependent parent of a qualifying

 

British citizen; or

 

(iii) the child or dependent parent of the spouse or

 

civil partner of a qualifying British citizen, as

 

described in sub-paragraph (i), above; and

 

(b) they satisfied regulation 9(2) and (4)(a) of the

 

EEA Regulations (as the family member (“F”) to

 

whom those provisions refer) immediately before

 

returning to the UK with the qualifying British

 

citizen (who is to be treated as the British citizen

 

(“BC”) to whom those provisions refer)

family member of a

a person who has satisfied the decision-maker,

relevant EU citizen

including by the required evidence of family

 

relationship, that they are (and for the relevant

 

period have been) or (as the case may be) they

 

were (for the relevant period or at the relevant

 

time):

 

(a) the spouse or civil partner of a relevant EU

 

citizen, and:

 

(i) the marriage was contracted or the civil

 

partnership was formed before the specified date;

 

or

 

(ii) the applicant was the durable partner of the

 

relevant EU citizen before the specified date (the

 

definition of ‘durable partner’ in this table being

 

met before that date rather than at the date of

 

application) and the partnership remained durable

 

at the specified date; or

 

(b) the durable partner of a relevant EU citizen,

 

and:

 

(i) the partnership was formed and was durable

 

before the specified date; and

 

(ii) the partnership remains durable at the date of

 

application (or it did so immediately before the

 

death of the relevant EU citizen); or

 

(c) the child or dependent parent of a relevant EU

 

citizen; or

 

(d) the child or dependent parent of the spouse or

 

civil partner of a relevant EU citizen, as described

 

in sub-paragraph (a), above; or

 

(e) resident in the UK before the specified date as

 

the dependent relative of a relevant EU citizen

 

(or of their spouse or civil partner, where the

 

application for the relevant document referred to in

 

the entry for ‘dependent relative’ in this table was

 

made before 1 February 2017) and that family

 

relationship and dependency existed before the

 

specified date (or, as the case may be, before 1

 

February 2017)

family member who has

a person who has satisfied the decision-maker,

retained the right of

including by the required evidence of family

residence

relationship, that the requirements set out in one

 

of sub-paragraphs (a) to (d), below, are met:

 

(a) the applicant is a non-EU citizen who:

 

(i) was the family member of a relevant EU citizen

 

(or of a qualifying British citizen) and that person

 

died; and

 

(ii) was resident in the UK as the family member of

 

a relevant EU citizen (or of a qualifying British

 

citizen) for a continuous qualifying period of at

 

least a year immediately before the death of that

 

person; or

 

(b) the applicant is an EU citizen or non-EU citizen

 

who:

 

(i) is the child of:

 

(aa) a relevant EU citizen (or of a qualifying British

 

citizen) who has died or of their spouse or civil

 

partner immediately before their death; or

 

(bb) a person who ceased to be a relevant EU

 

citizen (or a qualifying British citizen) on ceasing to

 

reside in the UK or of their spouse or civil partner

 

at that point; and

 

(ii) was attending an educational course in the

 

UK immediately before the relevant EU citizen (or

 

the qualifying British citizen) died or ceased to be

 

a relevant EU citizen (or a qualifying British

 

citizen), and continues to attend such a course; or

 

(c) the applicant is an EU citizen or non-EU citizen

 

who is the parent with custody of a child who

 

meets the requirements of sub-paragraph (b); or

 

(d) the applicant (“A”) is a non-EU citizen who:

 

(i) ceased to be a family member of a relevant EU

 

citizen (or a qualifying British citizen) on the

 

termination of the marriage or civil partnership

 

of A; and

 

(ii) was resident in the UK at the date of the

 

termination; and

 

(iii) one of the following applies:

 

(aa) prior to the initiation of the proceedings for the

 

termination of the marriage or the civil partnership,

 

the marriage or civil partnership had lasted for at

 

least three years and the parties to the marriage

 

or civil partnership had been resident in the UK for

 

a continuous qualifying period of at least one year

 

during its duration; or

 

(bb) A has custody of a child of the relevant EU

 

citizen (or the qualifying British citizen); or

 

(cc) A has the right of access to a child of the

 

relevant EU citizen (or the qualifying British

 

citizen), where the child is under the age of 18

 

years and where a court has ordered that such

 

access must take place in the UK; or

 

(dd) the continued right of residence in the UK of

 

A is warranted by particularly difficult

 

circumstances, such as where A or another family

 

member has been a victim of domestic violence or

 

abuse whilst the marriage or civil partnership was

 

subsisting

full birth certificate

a birth certificate recognised in the UK which

 

records the name of the mother and (where

 

registered) the father

immigration status in the

indefinite or limited leave to enter or remain in the

UK

UK under or outside the Immigration Rules;

 

exemption from immigration control; or the

 

entitlement to reside in the UK or the right of

 

permanent residence in the UK under regulations

 

13 to 15 of the EEA Regulations

Irish citizen

a person who is an Irish citizen as a matter of Irish

 

law

marriage of convenience

a marriage, civil partnership or durable partnership

 

entered into as a means to circumvent:

civil partnership of

(a) any criterion the party would have to meet in

convenience

order to enjoy a right to enter or reside in the UK

 

under the EEA Regulations; or

durable partnership of

(b) any other provision of UK immigration law or

convenience

any requirement of the Immigration Rules; or

 

(c) any criterion the party would otherwise have to

 

meet in order to enjoy a right to enter or reside in

 

the UK under EU law

non-EU citizen

a person who is not an EU citizen and is not a

 

British citizen

person who has ceased

the person:

activity

(a) has terminated activity as a worker or self-

 

employed person in the UK and either reached the

 

age of entitlement to a state pension on

 

terminating that activity or, in the case of a worker,

 

ceased working to take early retirement; and

 

immediately before that termination, was a worker

 

or self-employed person in the UK for at least 12

 

months and resided in the UK for a continuous

 

qualifying period of more than three years; or

 

51

 

(b) stopped being a worker or self-employed

 

person owing to permanent incapacity to work,

 

having resided in the UK for a continuous

 

qualifying period of more than the preceding two

 

years or the incapacity having resulted from an

 

accident at work or an occupational disease that

 

entitles the person to a pension payable in full or

 

in part by an institution in the UK; or

 

(c) resided in the UK for a continuous qualifying

 

period of at least three years as a worker or self-

 

employed person, immediately before becoming a

 

worker or self-employed person in an EU country

 

mentioned in the entry for ‘EU citizen’ in this table,

 

while retaining a place of residence in the UK to

 

which they return, as a rule, at least once a week

 

in addition, the conditions as to length of

 

residence and of employment in sub-paragraphs

 

(a) and (b), above, do not apply where the

 

decision-maker is satisfied, including by the

 

required evidence of family relationship, that the

 

relevant EU citizen is the spouse or civil partner of

 

a British citizen (substituting ‘British citizen’ for

 

‘relevant EU citizen’ in the entry for, as the case

 

may be, ‘spouse’ or ‘civil partner’ in this table)

qualifying British citizen

a British citizen who:

 

(a) has been or was resident in the UK with the

 

applicant for a continuous qualifying period which

 

corresponds with the continuous qualifying period

 

on which the applicant relies; and

 

(b) satisfied regulation 9(2) and (4)(a) of the EEA

 

Regulations (as the British citizen (“BC”) to whom

 

those provisions refer) immediately before

 

returning to the UK with the applicant (who is to be

 

treated as the family member (“F”) to whom those

 

provisions refer)

relevant document

a family permit, registration certificate, residence

 

card, document certifying permanent residence or

 

permanent residence card which:

 

(a) was issued by the UK under the EEA

 

Regulations (and was not subsequently revoked,

 

or fell to be so, because the relationship or

 

dependency had never existed or had ceased);

 

and

 

(b) has not expired or which remained valid for the

 

period of residence relied upon

relevant EU citizen

means:

 

(a) an EU citizen resident in the UK for a

 

continuous qualifying period; or

 

(b) where the applicant is a family member of an

 

EU citizen resident in the UK for a continuous

 

qualifying period who is a relevant naturalised

 

British citizen, a relevant naturalised British citizen

 

52

 

resident in the UK for a continuous qualifying

 

period

relevant naturalised

[to be confirmed in light of planned changes to the

British citizen

EEA Regulations to implement the CJEU

 

judgment in Lounes]

required application

[see paragraph 4.4, above: drafting to be

process

confirmed]

required biometrics

[see paragraph 4.10, above: drafting to be

 

confirmed]

required evidence of

in the case of:

family relationship

(a) a spouse ? a relevant document as the spouse

 

of the relevant EU citizen, or a valid marriage

 

certificate recognised under the law of England

 

and Wales, Scotland or Northern Ireland or of the

 

country in which the marriage was contracted;

 

(b) a civil partner ? a relevant document as the

 

civil partner of the relevant EU citizen; a valid civil

 

partnership certificate recognised under the law of

 

England and Wales, Scotland or Northern Ireland;

 

or the valid overseas registration document for a

 

same sex relationship which is entitled to be

 

treated as a civil partnership under the Civil

 

Partnership Act 2004;

 

(c) a child ? a relevant document issued on the

 

basis of the relevant family relationship or their

 

evidence of birth;

 

(d) a dependent parent ? a relevant document

 

issued on the basis of the relevant family

 

relationship or their evidence of birth;

 

(e) a durable partner:

 

(i) a relevant document as the durable partner of

 

the relevant EU citizen and, unless this confirms

 

the right of permanent residence in the UK under

 

regulation 15 of the EEA Regulations, evidence

 

which satisfies the decision-maker that the durable

 

partnership continues to subsist (or did so for the

 

period of residence relied upon); or

 

(ii) where the applicant is seeking to come to the

 

UK after the specified date, evidence which

 

satisfies the decision-maker that the partnership

 

was formed and was durable before that date and

 

that the partnership remains durable; or

 

(f) a dependent relative ? a relevant document as

 

the dependent relative of their sponsor (in the

 

entry for ‘dependent relative’ in this table) and,

 

unless this confirms the right of permanent

 

residence in the UK under regulation 15 of the

 

EEA Regulations, evidence which satisfies the

 

decision-maker that the relationship and

 

dependency continue to subsist (or did so for the

 

period of residence relied upon)

 

 

 

53

in addition:

(a)where the eligibility requirements to be met for leave to be granted under this Appendix relate to the death of a person, the required evidence of family relationship must include their death certificate or other evidence which the decision- maker is satisfied evidences the death; and

(b)where the applicant is a non-EU citizen without a documented right of permanent residence, the required evidence of family relationship must include:

(i)the following proof of identity and nationality of (as the case may be) the relevant EU citizen, or the qualifying British citizen, of whom the applicant is a family member:

(aa)(in the case of an EU citizen or a qualifying

British citizen) their valid passport (and ‘valid’ here and in sub-paragraph (bb) means that the document is genuine and has not expired or been cancelled or invalidated); or

(bb)(in the case of an EU citizen) their valid national identity card; or

(cc)(in the case of an Irish citizen) their full birth certificate, unless (in any case) the decision- maker agrees to accept alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons; and

(ii)evidence which satisfies the decision-maker that:

(aa)where the applicant is a family member of a relevant EU citizen, either that EU citizen was a relevant EU citizen throughout the continuous qualifying period on which the applicant relies as being a family member of a relevant EU citizen; or that EU citizen is a relevant EU citizen who has been or is being granted indefinite leave to remain under this Appendix (or who would be granted that leave, if they made a valid application under this Appendix); or

(bb)where the applicant is a family member of a qualifying British citizen, that British citizen was a qualifying British citizen throughout the continuous qualifying period on which the applicant relies as being a family member of a qualifying British citizen; and

(c)other than in sub-paragraph (b)(i), above, where, in order to meet the requirements of this entry, the applicant submits a copy (and not the original) of a document, the decision-maker can require the applicant to submit the original

 

document where the decision-maker has

 

reasonable doubt as to the authenticity of the copy

 

submitted

required proof of identity

(a) (in the case of an EU citizen or a non-EU

and nationality

citizen) their valid passport; or

 

(b) (in the case of an EU citizen) their valid

 

national identity card; or

 

(c) (in the case of an Irish citizen) their full birth

 

certificate; or

 

(d) (in the case of a non-EU citizen) their valid

 

specified relevant document or their valid

 

biometric immigration document (as defined in

 

section 5 of the UK Borders Act 2007), unless (in

 

any case) the decision-maker agrees to accept

 

alternative evidence of identity and nationality

 

where the applicant is unable to obtain or produce

 

the required document due to circumstances

 

beyond their control or to compelling practical or

 

compassionate reasons

 

in addition, ‘valid’ here means that the document

 

is genuine and has not expired or been cancelled

 

or invalidated

self-employed person

there is evidence which satisfies the decision-

 

maker that the person is, or (as the case may be)

 

for the relevant period was, either:

 

(a) a self-employed person as defined in

 

regulation 4(1) of the EEA Regulations; or

 

(b) a person who is or was no longer in self-

 

employment but who continues or continued to be

 

treated as a self-employed person within the

 

meaning of qualified person under regulation 6

specified date

2359 Greenwich Mean Time on 31 December

 

2020

specified relevant

means, within the meaning of ‘relevant document’

document

in the relevant entry in this table, a residence card

 

or permanent residence card issued on the basis

 

of an application made on or after 16 March 2015

spouse

at the date of application:

 

(a) the person is party to a marriage with a

 

relevant EU citizen (or with a qualifying British

 

citizen) and the marriage is recognised under the

 

law of England and Wales, Scotland or Northern

 

Ireland or is lawfully recognised in the country in

 

which it was contracted; and

 

(b) it is not a marriage of convenience; and

 

(c) neither party has another spouse, a civil

 

partner or a durable partner with (in any of those

 

circumstances) immigration status in the UK

 

based on that person’s relationship with that party

supervening event

means that at the date of application:

 

(a) the applicant has been absent from the UK for

 

55

 

a period of more than five consecutive years (at

 

any point since they last acquired the right of

 

permanent residence in the UK under regulation

 

15 of the EEA Regulations); or

 

(b) any of the following events has occurred,

 

unless it has been set aside or no longer has

 

effect in respect of the person:

 

(i) any decision or order to exclude or remove

 

under regulation 23 or 32 of the EEA Regulations;

 

or

 

(ii) a decision to which regulation 15(4) of the EEA

 

Regulations otherwise refers, unless that decision

 

arose from a previous decision under regulation

 

24(1); or

 

(iii) an exclusion decision; or

 

(iv) a deportation order, other than under the EEA

 

Regulations

termination of the

the date on which the order finally terminating the

marriage or civil

marriage or civil partnership is made by a court

partnership

 

valid evidence of their

means:

indefinite leave to enter

(a) a valid biometric immigration document (as

or remain

defined in section 5 of the UK Borders Act 2007),

 

a valid stamp or endorsement in a passport

 

(whether or not the passport has expired) or other

 

valid document issued by the Home Office,

 

confirming that the applicant has indefinite leave

 

to enter or remain in the UK, which has not lapsed

 

or been revoked or invalidated; or

 

(b) the decision-maker is otherwise satisfied from

 

the information available to them that the applicant

 

has indefinite leave to enter or remain in the UK,

 

which has not lapsed or been revoked or

 

invalidated

worker

there is evidence which satisfies the decision-

 

maker that the person is, or (as the case may be)

 

for the relevant period was, either:

 

(a) a worker as defined in regulation 4(1) of the

 

EEA Regulations; or

 

(b) a person who is or was no longer working but

 

who continues or continued to be treated as a

 

worker within the meaning of qualified person

 

under regulation 6

Annex 2 ? Consideration of a valid application

A2.1. A valid application made under this Appendix will be decided on the basis of:

(a)the information and evidence provided by the applicant, including in response to any request for further information or evidence made by the decision-maker; and

(b)any other information or evidence made available to the decision-maker (including from other government departments) at the date of decision.

A2.2.(1) For the purposes of deciding whether the applicant meets the eligibility requirements for indefinite leave to remain or for limited leave to remain, the decision- maker may invite the applicant to:

(a)provide further information or evidence that they meet those requirements; or

(b)attend an interview with the decision-maker.

(2)If the applicant purports to meet the eligibility requirements for indefinite leave to remain or for limited leave to remain on the basis of a relationship with another person

(“P”), including where P is a qualifying British citizen, the decision-maker may invite P to:

(a)provide information or evidence about their relationship with the applicant, their residence in the UK or, where P is a qualifying British citizen, their residence in an

EU country mentioned in the entry for ‘EU citizen’ in the table at Annex 1 to this

Appendix; or

(b)attend an interview with the decision-maker.

(3)If the applicant or P (as the case may be):

(a)fails to provide the information or evidence requested; or

(b)on at least two occasions, fails to attend an interview if so invited,

the decision-maker may draw any factual inferences about whether the applicant meets the eligibility requirements for indefinite leave to remain or for limited leave to remain as appear appropriate in the circumstances.

(4)The decision-maker may decide following the drawing of a factual inference under sub- paragraph (3) that the applicant does not meet the eligibility requirements for indefinite leave to remain or for limited leave to remain.

(5)The decision-maker must not decide that the applicant does not meet the eligibility

requirements for indefinite leave to remain or for limited leave to remain on the sole basis that the applicant or P failed on at least two occasions to comply with an invitation to attend an interview.

39Bold is used once where a term is defined in Annex 1, as a proxy for hyperlinks for now.

40This means for example that a person granted limited leave to remain as a family member of a relevant EU

41We are continuing to review definitions in paragraph 6 of the Immigration Rules and provisions in Part 1,

Part 9 and elsewhere in the Rules to identify any others which need to be used, modified or disapplied for applications under this Appendix.

42See paragraph 6.6, above: we are looking further at these and other aspects of this definition. 45